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State v. Potter

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 25, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERIC E. POTTER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-04-0646.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2007

Before Judges Payne and Graves.

Defendant, Eric E. Potter, appeals from his conviction for third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10a(1)(Count One); third-degree possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5b(3)(Count Two); and third-degree possession of heroin with the intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three), as well as from his extended-term sentence of seven years with a three-year parole disqualifier, imposed, following merger of the remaining counts, upon his conviction for the school zone offense.

On appeal, defendant raises the following arguments through counsel:

POINT I

THE TRIAL JUDGE ERRED IN PERMITTING THE DEFENDANT TO ACT AS HIS OWN ATTORNEY AS THE REQUIREMENTS FOR SUCH A DECISION WERE NOT MET. (Not Raised Below.)

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT AN ADJOURNMENT OF HIS TRIAL SO THAT HE COULD OBTAIN THE SERVICES OF THE ATTORNEY OF HIS CHOICE.

POINT III

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Defendant raises the following additional points in a pro se supplemental brief:

POINT I

THE COURT FAILED TO CONVEY THE APPLICABLE PRINCIPLES OF LAW AND THE STATE FAILED TO ENTER TESTIMONY THAT THE SUBSTANCE WHICH APPELLANT WAS CHARGED WITH WAS HEROIN.

POINT II

THE STATE FAILED TO ADHERE TO ITS NOTICE OF OBLIGATION STATUTE WHICH GIVES THE DEFENDANT 10 DAYS NOTICE IN WHICH THE DEFENDANT COULD OBJECT TO THE ADMISSION OF THE LABORATORY CERTIFICATE.

POINT III

THE TRIAL COURT ERRED WHEN THE DEFENDANT WAS DENIED A SUPPRESSION HEARING, BECAUSE THE CLERK OF THE COURT FAILED TO FORWARD SUBPOENAS TO THE DEFENDANT'S WITNESSES.

We affirm.

I.

The record of trial discloses the following facts: During the evening of November 18, 2002, defendant was observed by Asbury Park police officer Lorenzo Pettaway standing, in a well-known drug dealing area, in front of the Smokestack Restaurant. After observing defendant for approximately five minutes, Pettaway, who believed that defendant was the subject of an outstanding arrest warrant, called headquarters to confirm that fact. Upon confirmation, Pettaway placed defendant under arrest and conducted a cursory pat down that revealed no contraband. However, when an inventory search was conducted at headquarters, defendant was found to have thirty-nine bags of heroin secreted in a placket in his pants, near the zipper. Defendant also was found to have $632 in currency on his person.

Following indictment, counsel was assigned to defendant by the Public Defender. Defendant, believing that Pettaway's claim of an outstanding warrant was a ruse, sought to use that fact as the basis for a motion to suppress the evidence of the drugs found on him. It was defendant's position that he had been stopped on multiple occasions prior to his arrest, warrant lookups had been conducted, and no active warrant had been found to exist. Defendant's position was supported by the absence of a warrant in the discovery provided to him by the State.

On the day scheduled for the suppression hearing, defendant sought to dismiss his attorney, claiming that the attorney refused to call the police and other witnesses who had conducted the prior look-ups and could confirm defendant's position. However, as his attorney explained to the court, in the discovery produced, the State had listed the number of the warrant in question, which had been issued by municipal judge Kreizman in Ocean Township. Upon the attorney's request, the State had produced the actual active warrant, which matched the number of that provided in discovery. Additionally the attorney stated that he had been unable to "find any witnesses to bring into court to say they looked in the computer and there was no warrant."

Defendant, who adamantly sought, nonetheless, to demonstrate the illusory nature of the warrant, stated to the motion judge that he wished to hire a lawyer, and he requested an adjournment of the hearing, which was granted. Although the hearing was adjourned from July 3, 2003 to September 25, 2003, defendant apparently was unable to secure private representation, and he appeared pro se. Prior to the hearing, defendant had attempted to subpoena the witnesses that he claimed would demonstrate the absence of an active warrant. However, the witnesses did not appear at the hearing, because service of the subpoenas had never occurred. Upon learning that fact, the motion judge denied the suppression motion.

Fifteen months later, on January 4, 2005, trial commenced before a different judge. In the interim, the Public Defender had assigned a different attorney to represent defendant. However, defendant was dissatisfied with his services, as well, since he, like the prior attorney, recognized the validity of the warrant proffered by the State and declined to challenge it in the manner that defendant proposed. Additionally, defendant complained that the attorney conveyed plea offers to him, which defendant regarded as "selling [him] out."

Defendant, as previously, asserted that he wished to retain private counsel, and he named a Mr. Moriarty as his choice. However, upon further investigation, which included a call by the judge to Moriarty, it was determined that Moriarty had not been retained, that he would look at the file only if an adjournment were obtained, and that fees had not been discussed. When the judge was informed by the State that trial had been adjourned on nine prior occasions, and upon recognition that more than two years had elapsed since the date of the crime, the trial judge refused defendant's request for a further adjournment, stating that he believed that defendant was seeking to manipulate the criminal justice system.

The judge then proceeded to determine whether to permit defendant to proceed pro se with back-up counsel pursuant to the guidelines established in State v. Crisafi, 128 N.J. 499 (1992) and State v. Reddish, 181 N.J. 553 (2004). Although the trial judge had recently completed another trial in which defendant had represented himself with the same back-up counsel, he did not, as a result, foreshorten his discussion of the Crisafi/Reddish factors with defendant -- a discussion occupying seventy pages of transcript. At the conclusion of the proceeding, the judge found defendant to have knowingly, intelligently and voluntarily determined to proceed pro se. He observed:

Even though you have framed the issue so to speak, Mr. Potter, as a decision made where you did not feel you had a choice, I'm finding that your decision to proceed pro se in this indictment is voluntary.

Now, it's not a perfect world, Mr. Potter, to the extent that the Sixth Amendment allowed someone to be represented by counsel, but that doesn't mean counsel of their choosing. The public defender's office is in charge of appointing counsel in cases where someone can't afford counsel. They appointed you Mr. Kinarney. I know you were unhappy with Mr. Kinarney; that was before I was involved in the case.

They appointed you another counsel and I realize that you're not happy with Mr. Eisler. I would just note one more time for the record, Mr. Potter, that Mr. Eisler preserved all of your issues on appeal, on your last case when he filed his motion for a new trial.

I did not see any action or inaction by Mr. Eisler that was not in your interest. And I'm just saying that because while you've tried to frame this as an issue where you felt you have no choice, I believe you do have a choice.

It may not be the perfect choice that you can pick a lawyer, but your choice is to have Mr. Eisler represent you but you've indicated to the court that you want to represent yourself. And as I said, I found that you're making a knowing and intelligent waiver of your right to counsel and a knowing and intelligent decision to represent yourself and I'm also indicating for the record that I believe your decision to proceed pro se in this matter is voluntary.

A trial then occurred, in which defendant called the witnesses that he claimed his attorneys had refused to utilize. He was found guilty on all counts and sentenced as we have stated.

II.

On appeal, defendant claims that the questioning by the motion judge and by the trial judge was inadequate to determine whether or not he should have been granted the right to represent himself at trial.*fn1 We find this argument to be legally and factually groundless.

In State v. DuBois, 189 N.J. 454, 468 (2007), the Supreme Court recently synthesized the requirements of Crisafi and Reddish, stating that, together, they require the trial court to inform a defendant asserting a right to self-representation of (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.

The trial judge addressed each of these requirements. In particular, the judge discussed at length with defendant the drawbacks to the trial strategy that defendant was determined to follow, and the fact that, through his proposed witnesses' testimony, the jury would learn of defendant's extensive prior record. The judge discussed with defendant his right to testify on his own behalf and that such testimony could likewise lead to a disclosure of defendant's record. When defendant expressed confusion regarding the use of prior crimes to impeach the credibility of defendant's proposed witnesses and as to the effect of State v. Sands, 76 N.J. 127 (1977) and State v. Brunson, 132 N.J. 377 (1993), the judge engaged in a lengthy discussion of the two cases and, additionally, discussed and required that defendant read N.J.R.E. 609, which the judge provided to him.

The judge also emphasized that defendant was required to comply with the rules of evidence and the rules of court, recalling instances during defendant's closing argument in the prior case in which the judge had sustained objections by the State when defendant sought, in this context, to testify to matters that had not been addressed at trial. The judge received defendant's confirmation that it was harder to try a case before a jury than it was to represent himself on motions, and he established that defendant was aware of the difficulties inherent in being an attorney and defendant simultaneously. Additionally, the judge explained the nature of the charges, defendant's eligibility for an extended term, his potential defense of lack of possession, and the fact that defendant bore no burden of proof. Finally, the judge expressed to defendant his own opinion that the defendant was making an unwise decision in declining the representation of counsel and relying upon that counsel only in a stand-by capacity. Although on some occasions, the questions by the judge elicited only "yes' or "no" responses, defendant was given every opportunity to discuss matters that were unclear to him, and he took advantage of the opportunities that were provided. As a consequence, we find no ground to fault the trial judge in what we regard to have been an exemplary and probing examination regarding defendant's understanding of the challenges of self-representation.

III.

We likewise find no abuse of discretion on the part of the trial judge in declining to adjourn the trial of the matter for the tenth time. State v. McLaughlin, 310 N.J. Super. 242, 257-59 (App. Div.), certif. denied, 156 N.J. 381 (1998). As the judge stated at the time, if defendant had, in fact, demonstrated that a substitute attorney had been retained, he might have looked more favorably upon the adjournment application. However, such was not the case, since, as the judge himself confirmed, attorney Moriarty had merely been contacted, and he had not reviewed the file, agreed to the representation, negotiated a fee, or received any payment. Given the age of the case, defendant's chronic and legally groundless dissatisfaction with his assigned attorneys, the number of prior adjournments that had occurred, and the late notice provided by defendant of his intent to retain private counsel, we regard the trial judge to have acted well within his discretion in rejecting defendant's request for a further adjournment and requiring that the matter proceed to trial.

As we stated in McLaughlin:

Although the right to have the assistance of counsel is guaranteed by both the federal and state constitutions, State v. Fusco, 93 N.J. 578, 583 (1983), the right to retain counsel of one's own choice is not absolute and "'cannot be insisted upon in a manner that will obstruct an orderly procedure in the courts of justice and deprive such courts of the exercise of their inherent powers to control the same.'" State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.) (quoting Smith v. United States, 288 F. 259, 261 (D.C. Cir. 1923)), certif. denied, 101 N.J. 266 (1985). [Id. at 258-59.]

IV.

Likewise, we discern no merit in defendant's argument that the sentence imposed upon him, following the denial of stand-by counsel's motion for a new trial, was excessive. Defendant's extensive record of convictions for drug-related crimes clearly provided the foundation for the State's motion for imposition of a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. And we find no misuse of discretion on the part of the trial judge in sentencing defendant to a term of seven years -- three less than the State requested. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984). That defendant was addicted to heroin was properly rejected as a mitigating factor in this regard, since it fails to fit within the mitigating considerations set forth in N.J.S.A. 2C:44-1b and has not otherwise been recognized as such a factor.

V.

N.J.S.A. 2C:35-19c permits the State, in lieu of calling a witness, to proffer a certificate, signed by the employee performing a lab analysis of purported controlled dangerous substances, setting forth the result of the analysis. However, notice of the intent to proffer the certificate and all reports relating to the analysis must be provided to the defendant at least twenty days before trial. Any objection to the use of the certificate as the sole evidence of drug composition and quantity must be filed within ten days of receipt of the State's notice. If such objection is filed, the analyst must be produced at trial. State v. Simbara, 175 N.J. 37, 47-48 (2002). The statute further provides that "failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate." N.J.S.A. 2C:35-19c. The purpose of the statute is to protect a criminal defendant's right to confrontation, while alleviating "the burden imposed on State laboratory facilities by the necessity of having their employees involved in perfunctory court appearances in cases where the substance of their testimony is not genuinely in dispute."

State v. Miller, 170 N.J. 417, 429 (2002) (quoting Assembly Judiciary Committee, Commentary to the Comprehensive Drug Reform Act (November 23, 1987)).

In his pro se brief, defendant contends that he was not given notice of the State's intention to proffer a lab certificate, and thus the certificate was improperly admitted in evidence. This error, he contends, requires a new trial.

In response, the State asserts that "there is nothing to show that the State failed to turn over its notice of intention to rely on the lab certificate," but it does not produce that notice. Our review of the record discloses nothing of relevance to the notice issue.

Alternatively, the State argues that defendant's position was waived by his failure to object when the certificate was entered into evidence at trial. Although the State correctly notes that, in arguing for acquittal, defendant commented on the absence of the lab analyst as a witness, the State contends that defendant's argument in that regard did not adequately protect his right to object to the introduction of the report, even assuming the proper notification had not been transmitted to him.

We agree that waiver occurred in this case as the result of defendant's failure to raise any objection to the admissibility of the certificate. State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (noting that "hearsay evidence not objected to is evidential"). Although defendant commented on the absence of a live witness, thereby challenging the evidential weight of the certificate, at no time did defendant claim that the certificate was inadmissible in the circumstances presented. Moreover, our review of the transcript suggests to us that defendant's principal defense to the charges against him was that he was a user, not a seller, asking the State's drug expert: "What about if I told you I can use 30 bags a day? . . . Is it possible?" and receiving an equivocal response. Thus, we perceive no grounds for the conclusion that the admission of the evidence without the accompanying testimony of an analyst, if erroneous, had the capacity to affect the jury's verdict in this case. Defendant points to no specific prejudice in this regard or to any defect in the laboratory analysis.

We deem the defendant's remaining two issues to have insufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

Affirmed.


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